Vested Interest - Tort Briefs - February 2009 Issue

Settlement after Corporate Representative, Engineers Contradict 10-K Form

In Crigler, et al. v. International Baler Corp. the family of a man who died after his skull was crushed in a baler has settled a products liability suit against the manufacturer. While in automatic mode, the baler’s platen moved upward even when the loading chamber door was opened; there was no interlock to stop the platen from moving upward when the door was open; and continuous pressure on a manual control button was not needed to operate the platen. International Baler Corp., the manufacturer and designer, claimed in 10-K forms filed with the Securities and Exchange Commission from 1991 to 2006 that its balers were subject to federal and state regulation and that the company “complies with design requirements and its' balers include interlocks to prevent operation while the loading door is open….” IBC’s corporate representative and company engineers contradicted the 10-K form in deposition testimony, admitting that the baler did not have an interlock device to prevent the platen from moving upward when the door was open and that such pinch point hazards should have guards. The conflict between the 10-K form and the testimony played an important role both in winning a motion to add a punitive damages claim and in settling the case.

Doctor Settles Claim at Trial Following Negligent Failure to Treat

For the first time ever, a family practitioner was liable for his failure to treat or refer a patient with sub-acute bacterial endocarditis (SBE) to a cardiologist. Plaintiff’s attorneys were able to obtain a substantial settlement amount from the doctor and his group on plaintiff’s claim that doctor negligently failed to treat SBE when he made a differential diagnosis of SBE in one of his patients, the plaintiff’s mother, who had a known heart murmur and presented with flu-like symptoms. Flu-like symptoms may be a sign of SBE. SBE is a known complication for a person with a heart murmur. The plaintiff further alleged that there was a negligent failure to refer the decedent to a cardiologist following a differential diagnosis of SBE in a patient with a known heart murmur and presenting with clinical flu-like symptoms. The patient died six months after the misdiagnosis.

Settlement and Waiver of Workers’ Comp Lien

A settlement was reached following a carpenter’s fall into a stairway opening. Although he was wearing a harness and lanyard, OSHA found no violation. Plaintiff proved that the lanyard system only protected falls off the edge of the building. Plaintiff further proved there were no fall protection measures taken to prevent falls for an interior opening. Plaintiff sustained a knee injury ultimately leading to a knee replacement. The settlement also included a waiver of the workers' compensation lien.

Settlement with Insurance Company Following Bad Faith Claim

A settlement was reached for the family of a 27-year-old man who was struck and killed while riding his motorcycle in August 2004. United Automobile was advised that the policy limits demand would have been accepted had it been offered. In February 2005, the offer to settle was withdrawn and a lawsuit was filed. The defense paid the $20,000 policy limits and the remainder of the settlement was offered to resolve the bad faith claim, which had been previously perfected. According to insurance industry insiders, insurance companies do not typically pay to settle bad faith cases before the underlying case is tried.

Settlement in Wrongful Death Claim

The parents of a man who was killed when his car was rear-ended by a salesman who was delivering a motorcycle for his defunct former employer have settled their wrongful death claim. The key to settlement was showing that even though the former salesman volunteered to deliver the motorcycle on behalf of an employer that had closed its doors four days earlier, an agency relationship still existed. The case was filed in the Circuit Court of Franklin County, Missouri. The defendants agreed to pay the settlement after the trial court denied their motion for summary judgment on the agency issue.

Estate settles Claim with Bear Owner’s Estate

The owner of two black bears called her neighbor, the decedent, to assist with the bears. No one will ever know what the owner told her neighbor about her need for help with the bears. The decedent, an 80-year-old man, had previously helped with feeding and watering the bears. In response to the neighbor’s request for help, the decedent drove to the owner’s home. After leaving his truck, an escaped bear attacked the decedent and drug him to the bear’s pen. When police arrived, the decedent was found under the bear, still swinging at the bear’s head. The police shot the bear. The decedent was air lifted from the site but died in transit to the hospital. The decedent’s estate filed both strict liability and negligence claims against the owner of the bear. Shortly after the initiation of discovery, the bear owner died suddenly, leaving no witness to the event. Based upon the strict liability claims and the effects of the dead man’s act, the owners estate agreed to settle for the limits of the owner’s property insurance, $500,000. The two count complaint alleged strict liability as described under Illinois Pattern Jury Instruction 110.01. That instruction is premised upon a case from 1881 and the Restatement (Second) of Torts section 507. Since the 1881 case did not involve a bear, this may be the first case in well over a hundred years to involve personal liability involving a bear attack in the state of Illinois.

Settlement Reached Following Sexual Assault

A case involving sexual assault of a minor settled pre-suit with a private residential facility for at-risk youth. A male orderly sexually assaulted a 14-year-old girl during an overnight shift. Charges were investigated but never brought by police department. Case settled one week before girl turned 20-years-old.

Jury Returns Award for the Death of a 90-Year-Old Woman

A jury returned a record verdict for the family of a 90-year-old woman who was run over, dragged and killed in collision in Elmwood Park, Illinois. The woman, who was a pedestrian, died on the scene before the paramedics arrived. The woman was crossing the street, within the crosswalk, when a van struck and killed her. The van was driven by the owner of Wardzala Industries. It was undisputed that the driver was acting within the scope of his employment at the time of the collision. The driver claimed he had a green light and the pedestrian was crossing against the light. The jury’s award included damages for her wrongful death and for conscious pain and suffering. She was survived by two adult children.

Jamaican Car Crash Case Settles During Trial

A mother and her two children suffered serious injuries when the driver taking them from their hotel in Negril, Jamaica, to the airport in Montego Bay, Jamaica, crossed the center line and struck a lumber truck. The driver was killed. Suit was filed in Cook County against The Mark Travel Corporation d/b/a Funjet Vacations. Plaintiffs had purchased an all-inclusive vacation package that included transportation to and from the airport in Jamaica. Plaintiffs alleged that the driver was Funjet’s apparent agent.

Jury Awards Punitive Damages in Shooting

A Henry County jury returned a verdict for a man who was shot while walking near rural Kewanee. The defendant, who owned a fireworks business, was waiting near his fireworks bunker with two loaded guns. When he saw plaintiff walking nearby, the defendant opened fire, striking plaintiff with shotgun pellets. The defendant proceeded to hold the plaintiff at gunpoint and call the police. The plaintiff will have approximately 20 shotgun pellets in his body for the rest of his life. The jury awarded nearly six times the amount of the medical bills for pain and suffering and emotional distress. The defendant, who is currently serving time in prison for his role in the shooting, was also ordered to pay punitive damages.

Allstate Refuses to Pay then Pays Big

The plaintiff, an assistant golf pro at Knollwood Country Club in Lake Forest Illinois was injured when he was exiting the parking lot of the country club on his motorcycle. A member of the club allegedly was driving partially over the centerline causing the plaintiff to lose control of his motorcycle and injure his right knee. There was no contact between the vehicles and the total medical bills were $8,140.60. Allstate had $1.1 million in coverage and refused to settle pretrial and also refused a high/low offer as the jury was deliberating. The jury returned an award of precisely what was requested by plaintiff’s counsel with a reduction of 32 percent for contributory negligence, an amount in excess of the coverage.

Lake County Jury Awards Verdict to Family of Resident Killed While Retrieving Mail

Following a three-day trial, a jury returned a verdict for a 39-year-old man after he was killed while retrieving his mail. The plaintiff was retrieving his mail from his mailbox on the east side of Route 59, outside of his home in Lake Villa, Illinois. During the same time, the defendant was driving north on Route 59 and swerved off the roadway killing the plaintiff. The defense counsel argued that the plaintiff was appealing to the jury’s sympathy, and the amount for this type of loss was intangible. The plaintiff’s countered that this was a tremendous loss to all five family members, and a death that could have been avoided. The family of the plaintiff was adamant that the defendant was not only negligent, but that his conduct demonstrated a conscious disregard toward others.

Settlement Reached For Injuries Suffered as a Result of Job Site Negligence

A man who was burned as a result of alleged negligence which created an unsafe work site came to a settlement outside of court. While working at an Illinois job site, the plaintiff was required to repair a leaking fuel line by one of the defendants. Unfortunately, during the repair process, fuel leaked onto his pants. Several hours later while the plaintiff was loading steel scrap at the site, a piece of steel became caught on his pants. A spark from the torch he used to cut free from the steel ignited the fuel on his pants from the earlier repair resulting in burns to his lower body. The lawsuit alleged the defendants were negligent for failing to maintain a safe worksite for its subcontractors and in failing to provide personal protective clothing, personal protective equipment, and the fire fighting equipment.

Settlement Reached For Man Who Dies as a Result of Methadone Intoxication

A man who died from an overdose of methadone pain medication prescribed by his own doctor reached a settlement outside of court. The plaintiff was prescribed a variety of pain medications following an automobile accident, which resulted in suffering from chronic and debilitating back pain. An anesthesiologist and pain management specialist increased the plaintiff’s daily dosage of methadone from 20mg a day to 90mg a day, constituting a 450 percent increase of the daily dosage of methadone. Two days after the methadone increase the plaintiff was found dead as a result of the methadone and hydrocodone intoxication.

Chicago Park District Settles Sexual Abuse Case

Plaintiff was 9-years-old at time of sexual abuse by a recreational leader working for CPD and working at its Rainbow Beach facility. The Park District maintained that it had no prior knowledge of abuse by its employee and had done a background check on him prior to his employment and nothing showed up and further claimed that the abuse did not occur on their premises. Recreation leader convicted of sexual abuse of a minor and serving long prison term. Plaintiff has had drug and alcohol problems and is a felon who has been in and out of prison for years.

Jury Finds Architect Negligent

A jury returned a verdict for a maintenance worker who fell about nine feet into an open orchestra pit while trying to hang a projection screen. The pit was located in a performing arts theater, which was under construction. The plaintiff suffered various injuries to his head, back, and feet. The defendant was hired to design the renovations and to perform construction work. The 12-person jury returned a verdict that was the largest possible against an architect for related injuries in Cook County.

Settlement Reached in Delayed Diagnosis

A 64-year-old woman went to Swedish Covenant Hospital’s ER with knee pain. She was treated and discharged. The hospital delayed the diagnosis and treatment of meningitis. The patient suffered a stroke and severe disability.

Settlement at Trial After Failure to Diagnose

A 52 year-old woman went to the hospital complaining of severe headache and vomiting. She was discharged and sent home. She returned to the hospital over the next four days where the neurologist missed signs of an internal carotid artery dissection. The patient suffered a stroke and suffers from partial blindness.

Settlement for Medical Negligence

A 47-year-old woman reached a settlement with her prior doctor who she went to for three years with varying degrees of back pain. When she switched doctors, an MRI showed progressive problems with her spine and two operations were immediately performed. They found a vascular abnormality. The patient has constant back pain and nerve damage.

Settlement for Injured Suicidal Teenager

The mother of a teenage girl who suffered serious spinal injuries when she jumped off the balcony at the facility for troubled youth where she was living settled her lawsuit against the Lake Villa center. The girl, who was 16, suffered a burst fracture of the L1 vertebrae and other injuries. The defense claimed the suicidal girl was the sole cause of her own injuries. Plaintiffs were able to get admissions from all three defense experts that the institution violated its own rules for supervision of suicidal teenagers.

Settlement Reached Following Accident that Aggravates Pre-Existing Condition

A 54-year old automobile passenger reached a settlement with State Farm following an auto accident that caused aggravation to a pre-existing spinal cord injury. The plaintiff had previously sustained a spinal cord bruise resulting in extensive hospitalization at the Rehabilitation Institute of Chicago and was on a maintenance program including a walker, physical therapy, occupational therapy and medication for spasticity. Following a low-speed automobile impact, the plaintiff subsequently required a cervical fusion to stabilize the spine against further injury as well as the insertion of an intrathecal pump to administer higher doses of anti-spasticity medication. The rear-end collision in question caused virtually no discernable property damage to the vehicles. Post-accident MRI showed no change in condition but the plaintiff felt a worsening of his spasticity (tightness) within hours of the collision.

Insurance Company as 1st Party Defendant Offers Settlement

Plaintiff was hit by uninsured vehicle. After accident, tortfeasor driver gets out, and runs away, never to be heard from again. Plaintiff sustains torn rotator cuff and has surgery. Plaintiff files law division complaint against tortfeasor and then plaintiff demands uninsured motorist arbitration with plaintiff’s American Family Insurance. Evidence depositions of various doctors and defendants expert are taken. Case proceeds to arbitration and plaintiff receives verdict in excess of UM policy limits. American Family then files a chancery complaint to reject the award and seeks a trial on all issues. Plaintiff then amends complaint to join American Family as a 1st party defendant in case. Plaintiff then consolidates American Family’s chancery complaint, into law division case. Defendant objects and loses.

Defendant files motion to dismiss, which is denied. Case proceeds to trial. Judge indicated it was a matter of first impression for him, as he had never had an uninsured motorist trial where 1st party defendant was insurance company. Defendant has never offered any money. During motions in limine, plaintiff successfully bars defendant’s expert from testifying at trial, as defendant only disclosed expert in UM matter and failed to properly disclose in law division matter. Judge bars expert. The next day, during jury selection, defendant offers to settle case. Policy was $100K.